Mr Justice Collins:
- The claimants in each of these two cases, which are being heard together, are police officers. On 21 March 2003 they were on patrol together in Leeds and arrested a man called Stoner for an alleged offence contrary to Section 4 of the Public Order Act 1986. The arrest was based on Stoner's shouting and swearing at the officers and threatening to brick their car. It was decided when discussions were held at the police station where Stoner was being processed that he should be charged with an offence contrary to Section 5 of the Public Order Act 1986, which is a summary offence. PC Ashton's statement said that the arrest was contrary to Section 5.
- Because of circumstances which I will have to go into in greater detail in the course of this judgment, the prosecution of Stoner was abandoned by the CPS and proceedings were taken against both the claimants for an alleged attempt to pervert the course of justice. It was alleged that they had dishonestly sought to have Stoner convicted of an offence which they knew he had not committed by falsifying the evidence against him. On 18 August 2004 before HH Judge Gullick at the Bradford Crown court submissions on behalf of both claimants that to continue with the prosecution amounted to an abuse of process succeeded and so the prosecution was stayed. The learned judge concluded his ruling as follows: -
" … I consider that the defendants have established to the necessary degree that a fair trial would not be possible since they have been deprived by the prosecuting authority of the opportunity to call potential witnesses and, in addition the whole background of events leading up to the arrest of these defendants leads me to the conclusion that the court's processes may have been manipulated and I am not prepared to allow a trial of serious charges of this type to begin in the circumstances".
- The necessary notices had been served on the claimants to enable disciplinary action to be taken. For obvious reasons, no action was to be taken until the criminal proceedings were disposed of, save that each claimant was suspended from duty. Following Judge Gullick's decision, the claimants' solicitors wrote asking that the suspensions should be lifted and the notices which had been served under the Police (Conduct) Regulations should be withdrawn. That request was refused. This led to the claims by PC Ashton on 23 September 2004 and by PC Fraser on 5 October 2004.
- The claims were based on allegations of bad faith on the part of the defendant. I should make it clear that it is not and has never been suggested that the defendant himself has been guilty of bad faith or of any misconduct at all. He is, as Chief Constable, ultimately responsible for the actions of his subordinates and the allegations in the claims are aimed at those who have been responsible for investigating and pursuing the proceedings against the claimants in what was then known as the Discipline and Complaints Department (D&C). It is now, I think, and has since November 2004 been known as the Professional Standards Department. The Chief Constable himself played no part in the events leading up to or in pursuing the criminal or disciplinary proceedings against the claimants. There is in addition a separate claim that the suspensions were and are unlawful and should be lifted whether or not the disciplinary proceedings are to continue.
- On 3 November 2004 at an oral hearing Forbes J granted permission for the claims to proceed and, following consideration of appropriate directions on 16 December 2004, he ordered inter alia that 12 witnesses whose statements had been produced on behalf of the defendant should attend for cross-examination. It is clear that in granting permission Forbes J was much influenced by the decision of Judge Gullick which was itself based on documents which on their face provided, as Forbes J said, 'a strong evidential case … to support the submission that the disciplinary proceedings are being taken in bad faith'.
- In the result, it did not prove necessary for all the witnesses to give evidence and Mr Myerson was content to accept some statements. I heard from 8 witnesses including 3 of those in the CPS who were responsible at various stages for considering and making decisions in relation to the prosecutions of Stoner and of the claimants. As the witnesses gave evidence, it became more and more apparent that Mr Myerson was not going to be able to persuade me that his allegations of bad faith were established. He did not formally abandon them in his final submissions, but he recognised the inevitable. He has accepted that in those circumstances, it is unnecessary for me to make detailed findings of fact or to assess the evidence given by the witnesses in the course of this judgment. I will obviously have to refer to some of the evidence in explaining the history and circumstances of the matters which have led to these claims, but since I have decided, as will become apparent, that the disciplinary proceedings can be permitted to proceed, it is undesirable that I should make any findings or comments, save such as are essential to a proper understanding of my decision, which could or could be thought to influence the panel which may in due course hear the charges.
- David Stoner lives in the Cross Green area of Leeds. He is (or, on one view, was) what is called a prolific criminal. He certainly has a large number of convictions recorded against him, mainly for offences of dishonesty. A number of criminals living in Leeds, including Stoner, had made complaints that various police officers in a period commencing some time in the mid-1990s had behaved in a seriously unprofessional and indeed criminal fashion in dealing with them. The main allegations involved suggestions that individuals were offered to be supplied with drugs if they admitted to offences and that in other cases individuals had signed blank sheets of paper or forms which had later been filled in to include admissions to various offences. Stoner had alleged that he had been induced to sign blank forms by a DC Aveyard, who was known to and was a friend of PC Ashton. Those disciplinary proceedings were in train in late 2002 and early 2003 and Stoner was due to give evidence against DC Aveyard. Following various adjournments, that hearing was to take place in early April 2003. Those proceedings have been called the Cross-Border hearings.
- Stoner was known to PC Ashton inasmuch as he had had contact with him on, he says, four occasions prior to 21 March 2003. In February 2002 he had attended his house as a result of a domestic disturbance involving allegations of assault on his pregnant girlfriend. No action was taken against him on this occasion. In July 2002 PC Ashton was deputed to execute an arrest warrant against Stoner. Thirdly, in October 2002 he and another officer had gone to a house in Leeds to arrest a named suspect. Stoner was at the house. When the suspect was discovered and arrested, there was violence shown towards the two officers by a number of people who were present including Stoner. Finally, the following day, he was in a van with other officers. The sergeant in charge had occasion to get out of the van and to speak to Stoner but, because of what had happened the day before and Stoner's hostile attitude to him, PC Ashton felt it prudent to keep out of the way and stayed in the van. PC Fraser had never come across Stoner before 21 March 2003 and was not a friend of DC Aveyard or of any of the officers involved in the Cross-Border hearings in respect of whom Stoner was giving evidence.
- For several days prior to 21 March 2003 there had been serious public disorder in the Cross Green area of Leeds and it was becoming a virtual no go area. As a result, orders had been made under s.60 of the Criminal Justice and Public Order Act 1994 enabling police officers to stop individuals within a particular area and search them for offensive weapons or dangerous instruments. The briefing given informed the officers on duty that it was intended to provide a high police presence in the area and to collect evidence relating to the appearance and clothing and identity of individuals who might have been or might become involved in committing offences. Accordingly, they had with them in the patrol car a civilian video cameraman called Matthew Oxby. His task was to gather evidence so that he would expect to record any apparent criminal activity and, in the context of the problems in Cross Green, individuals who were observed as the patrol car went on its rounds. He would naturally expect to record any occasion when an individual was stopped and spoken to or searched.
- PC Ashton was driving the car. Sometime around 7.30 p.m. they happened to be in the street in which Stoner lived with his girlfriend, Kimberley Leek, and saw Stoner walking towards them. PC Fraser got out and spoke to him: he was an obvious suspect in respect of possible involvement in unlawful behaviour. Mr Oxby was videoing. According to what the claimants noted in their pocket books and later in statements made for the purpose of the prosecution of Stoner, he immediately 'kicked off' shouting and swearing. In his statement dated the 21 March 2003 PC Ashton said that while PC Fraser was attempting to explain the procedure, Stoner became 'immediately aggressive and abusive towards all persons present stating "You fucking wankers, get that video out of my face, have you fuckers got nothing better to do?" Ms Leek came out of the house and joined in the abuse. PC Fraser warned Stoner and received the reply "Fuck you, you tossers can't do fuck all". He then started walking towards his front door, which was close by (probably a matter of a few feet) shouting abuse, whereupon PC Ashton took hold of him and cautioned and arrested him 'for Section 5 public order'. Stoner attempted to resist arrest by taking hold of the metal security gates at the front of his house. He was prised loose, handcuffed and put in the car. As will be apparent from what I earlier said, PC Ashton now says he arrested Stoner under s.4 of the 1986 Act. That is of significance because a power of arrest under s.5 is dependent upon a warning having been given to cease whatever behaviour is regarded as being contrary to the section and that warning having been ignored. No such limitation is placed on the power of arrest under s.4.
- Although this was not recorded in his statement of 21 March 2003, perhaps because he thought it was not relevant for the purposes of the s.5 charge, PC Ashton recorded in his notebook that during the journey to the police station in the car Stoner said:
"I am not a fucking shithead like those wankers up there. I'll fucking have you like I am going to get Aveyard".
When asked what he meant, he said 'you'll fucking see'. In due course, PC Ashton gave evidence on DC Aveyard's behalf of the arrest of Stoner and that he had made that observation. The inference which was sought to be drawn from it was that his allegations against DC Aveyard were not true. When he gave his evidence on 15 April 2004, Ms Teresa Lawson, a legal casework manager in D & C, (she has legal qualifications in the form of a LLB and was acting as an instructing solicitor in connection with the Cross Border hearings) was unaware of the existence of the video and had not seen PC Ashton's statement and so there was no cross-examination of PC Ashton based on what was shown by the video. His evidence did not in the result assist DC Aveyard who was found guilty of the charge. He is appealing that finding. I should add that what PC Ashton says Stoner said in the car was not corroborated by either PC Fraser or Mr Oxby nor does it necessarily bear the inference which was suggested.
- On 24 March 2003, Ms Lawson received a message which read: -
"David Stoner rang at 3.10 p.m. He says he is being harassed by officers from Killingbeck and is being arrested for s.5 etc.
He says could someone ring him as if it continues he will not attend the hearing".
Killingbeck is the station at which PCs Ashton and Fraser were based and the hearing referred to was that concerning DC Aveyard.
- Ms Lawson spoke to Stoner. She could not recall whether he repeated his threat not to give evidence unless something was done about the harassment or the prosecution. Ms Lawson spoke to counsel, Mr Kelly, who was dealing with the cross-border hearings to seek his advice on how to proceed. She did not, it seems, tell him specifically of Stoner's apparent threat not to give evidence unless something was done. Counsel advised that he should be seen to confirm that he could give evidence and to refresh his memory from being able to see his statement again. As a result, on 28 March 2003, Ms Lawson instructed Inspector Moore to see Stoner. In her minute to Inspector Moore, she said: -
"Mr Kelly … has requested that Mr Stoner be seen before the hearing and asked if he has any concerns regarding giving evidence at the hearings and if he has please take a statement detailing those concerns.
Mr Kelly has indicated that Mr Stoner should be allowed to refresh his memory from his statement (copy enclosed) and then be asked if he is happy to give evidence in line with his statement".
And in a subsequent paragraph, she said, after referring to the telephone call she had had with him: -
"Mr Stoner informs me that he is being harassed by police officers from Killingbeck Division and in particular by PC Ashton. I informed Mr Stoner that someone from this Department would visit him to discuss the matter either later this week or early next week".
- Inspector Moore saw Stoner on 2 April 2003. He reported back to Ms Lawson in the following terms: -
"On 2.4.03 myself and DI Nuttal visited David Stoner at his home address 6 St Hilda's Crescent, Leeds. Present was his common law wife Kimberley Leek.
Mr Stoner was allowed to read his statements and refresh his memory as requested. He stated it is still his intention to give evidence at the forthcoming hearings. However, he stated the following three incidents had caused him some concern but had not affected his resolve to assist the police. Brief details of his allegations are as follows:
October 2001
Mr Stoner alleges that one evening in October 2001, whilst walking in the Cross Green Lane area of Leeds he was stopped by approximately seven police officers in a marked police van. He identifies 2 of the officers as PC Ashton and PC Bestington. For no apparent reason he as bundled into the back of the van and taken to Copperfields School where he was assaulted. He sustained minor injuries of slight cuts and scratches to his head. Although he cannot say who carried out the assault, he believes PC Bestington was not one of them as he saw him outside of the van talking to 2 other police officers in a separate car. Following the assault he was released from the van and allowed to go home.
He did not make a complaint at the time and when asked why said "What's the point". He believes this incident was shortly before a previously cancelled Operation Passport hearing.
On a subsequent occasion, dates not known, he states he again saw PC Bestington and when asked about the aforementioned circumstances the officer allegedly said "I didn't hit you, I got out of the van".
May 2002
In May 2002, Mr Stoner was arrested in Leeds City centre following an argument with Kimberley Leek, who was 6 months pregnant. He cannot recall details of the officers involved. He was subjected to CS spray and later charged with 'resisting arrest' and s.5 Public Order Act offences. He states these were later discontinued at court.
He believes this incident occurred about the time when another adjournment was made at one of the hearings.
21 March 2003
On this date Mr Stoner was arrested at approximately 7.30 pm by officers including PC Ashton. He alleges he was walking back from a local shop to his home address when as he walked into St Hilda's Crescent he saw a Vauxhall Zafira police car with 3 officers inside it. PC Ashton allegedly indicated in his direction and an officer in the car pointed a video camera at him. The police officers then gout out of the car and asked him certain questions relating to his description. Mr Stoner took exception to this, swore at the officers and walked away into his home. He was followed into his house and following a struggle arrested. During this incident a pram containing his baby daughter was knocked over. This was witnessed by Kimberley leek. However, neither Mr Stoner or Miss Leek are making any allegation regarding this and say the pushchair was knocked over by accident.
Following his arrest Mr Stoner was taken to Killingbeck police station. Miss Leek will say that she was then approached by 2 police officers and in an intimidatory fashion asked 'if she was frightened now Stoner wasn't there'. Ms Leek also mentioned a female officer called PC Taylor who she believes was involved in this incident.
Whilst at Killingbeck police station he spoke to an inspector, but did not make an official complaint as he believed the inspector was friendly with the officers.
Mr Stoner was charged with an offence under s.5 POA and bailed with conditions including a curfew between 9 pm and 7 am. He was checked 3 times whilst the curfew was in place, the last time by some plain clothes officers. Although the conditions of curfew have now been lifted by the courts Mr Stoner is due to appear at Leeds Magistrates Court on 2o May where he will be pleading not guilty.
Although Mr Stoner cannot recollect exactly when, he recalls that PC Ashton once made comment to him that he knew he was a witness and giving evidence against members of the Cross Border Team. He believes this is why he has been subject to the incidents he has outlined.
Mr Stoner is still prepared to give evidence at the hearings but he requests that enquiries be made into the three incidents that he has described.
Submitted for your information and attention".
- As is apparent, reference is made to a video camera. It seems Ms Lawson did not immediately appreciate the possible significance of this. On 9 April 2003 PC Ashton contacted her saying he had been asked to give a statement to DC Aveyard's solicitor and to provide copies of intelligence reports on Stoner. This latter request was what was concerning him. When giving evidence, Stoner was cross-examined about the 21 March incident and mentioned the video. After PC Ashton had given evidence, Ms Lawson thought she should follow up the issue of the video. She has been criticised for not having informed either Mr Kelly or Inspector Moore in terms of Stoner's apparent threat not to give evidence unless something was done about actions against him and it has been suggested that she pursued the video because she was angry at PC Ashton for having given evidence. Neither criticism is in my judgment appropriate. Once she was aware of the video's possible existence, it is hardly surprising that she should want to see it, particularly as Stoner might well want to pursue a complaint in relation to the 21 March incident. She accepted that she perhaps should have mentioned the threat expressly, but I am bound to say I cannot see that it made any difference to the events that followed. In any event, I am entirely satisfied that her failure to mention it explicitly was in no way driven or influenced by a desire to ensure that Stoner was reassured so that he would give evidence and a belief that, if Mr Kelly or Inspector Moore were aware of the threat, they would have acted in any different way. There is nothing sinister in what she did.
- She obtained a copy of and saw the video on 16 April 2003. She was in the company of Mr Kelly and Superintendent Bradley, now in charge of D & C. The video did not on its face support the commission of an offence by Stoner. It recorded PC Fraser speaking to him. He was obviously concerned at the videoing, but he did not swear at the officer or utter any threats. Ms Leek appeared at the door of the house and she swore at and was abusive to the officers, but Stoner told her go, saying: -
"Kimberley, just go and let them fucking – let them fuck about. Come on then, hurry up".
He repeated to her to get in the house and to PC Fraser to 'fucking hurry up'. There were a few more questions to confirm what he was wearing and some physical characteristics and the tape was switched off as he walked off, PC Fraser having concluded by saying: -
"Thank you for your time, sir".
There followed a 14 second gap and a second or so further filming of some young girls, in the course of which Ms Leek can be heard saying:
" … ching young girls up the s…"
In the statement he subsequently made on 10 June 2003, Mr Oxby said he recalled beginning to film a 'couple of kids who were further up the street' but desisted on hearing Ms Leek call out something like 'Filming little girls now'. Mr Oxby heard nothing untoward and filmed nothing more and was, he said surprised when a short time later (he estimates it at 40 seconds) Stoner was bundled into the car.
- Although neither Ms Lawson nor Superintendent Bradley had seen any statements in connection with the 21 March incident, they were and for very good reason concerned by what they saw on the video – or, rather, by what they did not see. Accordingly, they felt that they should enable the Crown Prosecutor in charge of the case to see the video herself. Thus on 2 May 2003, Ms Lawson accompanied by Superintendent Bradley took the video to Ms Macaulay, the Crown Prosecutor. The meeting lasted up to ½ hour or so. The video itself takes a little over 1 minute.
- No notes were made of that meeting. No doubt, with hindsight, it would have been better if they had. But there is nothing sinister in the absence of notes. It was suggested that Ms Lawson went with Chief Superintendent Bradley in order to put pressure on Ms Macaulay to abandon the prosecution because they wanted Stoner to be as untainted as possible in respect of the evidence he gave in the cross-border hearing. Apart from being denied by all concerned, this suggestion flies in the face of the reality of the situation. The video was wholly inconsistent with the account being put forward by PC Ashton and did not on its face support a prosecution. In those circumstances, Ms Macaulay would be bound to reconsider whether the case should proceed.
- What she in fact did was to send a memorandum to the casebuilder at Killingbeck asking for clarification of various matters. This memorandum, dated 12 May 2003, reads as follows: -
"I have viewed the video evidence in this case and would be obliged if clarification could be sought from PC Ashton and PC Fraser. The video does not appear to show what is detailed in the statement of PC Ashton (I am yet to see the CJA provided by PC Fraser). Although Mr Stoner is not the most helpful in answering the questions posed by him by the officer, he is far from abusive or obstructive. In fact the most abusive person on the video would appear to be Mrs Stoner, why was she not arrested?
Looking at the time counter on the bottom of the video screen, there are discrepancies between the timings as mentioned in the statement of PC Ashton and the times shown on the video. Why? Why is there a 6 second gap between the end of the footage showing Mr Stoner and the beginning of the next event? Why is there then a 1 hour gap after that?
It is unclear from the video who the officer is who is shown on the video questioning Mr Stoner. Who is it? Where are the others when this questioning is being carried out?
Please can the statements of PC Fraser and Matt Oxby be forwarded asap, along with the PNB of PC Fraser".
Mr Myerson was compelled to admit that her actions were not only entirely reasonable but that no other course of action would have been appropriate. Although the overwhelming probability was that the case would not continue – apart from anything else, PC Ashton would not be likely to stand up to cross examination – it was sensible to obtain any other material which might lead to another course of action. If PC Ashton gave a reasonable explanation and if PC Fraser and Mr Oxby produced statements (they had not yet done so) which showed that the behaviour which contravened the Public Order Act occurred after the video was switched off, it might have been possible to approve the continuation of the prosecution. Chief Superintendent Bradley was criticised for not having then and there decided that disciplinary proceedings would follow and so in effect permitting (it was suggested deliberately thereby avoiding the safeguard which would result from a caution which, had disciplinary proceedings been commenced, must have been administered) the two officers to provide evidence against themselves. That suggestion I have no hesitation in rejecting.
- Regulation 9 of the Police (Conduct) Regulations 1999, which were in force at the material time, provides: -
"The investigating officer shall as soon as is practicable (without prejudicing his or any other investigation of the matter) cause the member concerned to be given written notice"
of various matters, including that an investigation is to be carried out and that he is not obliged to say anything concerning the matter. But this only applies once a decision has been made to appoint an investigating officer. And that decision need not be taken until the supervising officer (that is to say, the officer assigned by the Chief Officer to supervise any investigation) is satisfied that there is something which properly requires an investigation. Many complaints are received, particularly by disgruntled defendants who will try any ploy to hinder their prosecution. Many complaints are entirely ill founded. It is therefore reasonable to want to see whether there is indeed any explanation which shows that the complaint lacks validity.
- It is all the more important that existing prosecutions should not be impeded by the unnecessary serving of Regulation 9 notices. Mr Myerson submitted that in all such cases consideration should be given to whether the officers' rights might be affected in that they might provide incriminating material if asked for further information without being warned about possible disciplinary action. That submission parts company from reality. Defendants often seek to run defences based on alleged misconduct by police. It may therefore be necessary for prosecuting counsel or the CPS to seek statements to deal with such allegations. To suggest that in all such cases consideration should be given to whether the officer should be given a warning borders on the absurd. Naturally, Mr Myerson argued that he was not going that far but was limiting his submissions to the facts of this case. As I have said, the request for further clarification was entirely reasonable and the fact that PC Fraser then chose, he says through carelessness, to follow PC Ashton in producing a statement (which incidentally accords with what is in his pocket book) which is manifestly erroneous when compared with the video cannot help to persuade me that he should have been warned or that it was unfair to ask him for the statement. Mr Myerson further submitted that it was unfair that he was not told of the possible discrepancy between the prosecution and the video. I disagree. In any event, if his witness statement were to accord with what appeared on the video, he could not be in any difficulty. PC Ashton was asked for an explanation of why his evidence and video were at variance. He gave an explanation which was regarded as unsatisfactory by Ms Macaulay. That was not in the least surprising.
- Although she had not got a statement from Mr Oxby, who was apparently on honeymoon until 19 May, Ms Macaulay decided that she would take advantage of a remand hearing on 20 May, which she had previously expected to require a request for an adjournment, to discontinue the prosecution. That decision was clearly correct. Indeed, as Mr Myerson accepted, no other decision could reasonably have been made.
- Following that, on 28 May there was an appointment by Chief Superintendent Bradley of an investigating officer in the person of Detective Inspector Spencer. They had formed a clear preliminary view that what the claimants had done amounted to an attempt to pervert the course of justice by having Stoner convicted for something he had not done. He had, as Mr Bradley said in evidence, apparently been fitted up. This was palpably a very serious matter. Mr Myerson accepts, as he must, that such a view was not unreasonable, although he contends that it was mistaken and that in due course the claimant will show that they have been guilty of nothing more than carelessness in preparing and presenting their evidence. In any event, it was decided that no Regulation 9 notices should be served immediately but that there should be arrests of both at the same time to avoid any possible collusion. In the result, both were arrested at about 6 a.m. on 10 June. PC Ashton was kept at Halifax police station until the evening before being bailed. At that stage, he, on advice, declined to answer questions. PC Fraser explained in interview that the offensive behaviour occurred after the video ceased. It is clear that there was a commotion at the door of Stoner's house when he was arrested so that Mr Oxby's failure to appreciate that an incident was occurring cannot mean that nothing happened. That there was a commotion is common ground.
- The decision to arrest may perhaps, with hindsight, have been unnecessarily heavy handed. But it was not unlawful. Suspensions followed service of Regulation 9 notices. It was reasonable to defer this service until 10 June having regard to the decision that they might collude and so hinder the investigation. Mr Myerson spent some time challenging this decision. Whether or not it was in fact justified is not the point. It was in my view reasonable at the time and for what was believed to have occurred suspension was inevitable. That Mr Myerson accepts and further recognises that once the charges were preferred in October 2004 and the allegation remained one of dishonesty suspension was equally inevitable.
- A decision was made that there should be a prosecution. This was contrary to advice obtained from counsel. I have heard from the Crown prosecutor concerned and see no reason to believe that her decision was based on anything other than an evaluation of the evidence available. It was based upon the investigating officer's report and the material referred to in that report. I do not think it is necessary to go into that report in any detail since its conclusions will be considered in the disciplinary hearing and it would be undesirable for me to make any comments upon it. Suffice it to say that while the lack of motive for PC Fraser to involve himself in the way suggested is of some importance and the distinction between his position and that of PC Ashton may need thought and the suggestion that because Mr Oxby did not turn on the video there could have been nothing untoward happening may not bear close examination, the conclusion is not in the least irrational. It was clear from Deputy Chief Constable Brear's evidence (he had ultimate responsibility for deciding whether the charges should go ahead and whether the claimants should be and remain suspended) that he formed the view from the video and the officers' statements that there was a clear prima facie case that they had fitted up Stoner. That view, whether or not it ultimately turns out to be correct, is clearly reasonable.
- One of Stoner's complaints of harassment was that in October 2001 he was bundled into a police van and assaulted by PC Ashton and other officers. This led to Regulation 9 notices against all 8 officers involved. It took far too long for the matter to be dealt with and by August 2004, despite no corroboration of Stoner's allegations, their staleness and their inherent improbability, the Regulation 9 notices had not been, to use the jargon, finalised. The claimants wanted to call the officers concerned to attack Stoner's credibility. Judge Gullick was erroneously told by prosecuting counsel that the notices could not be disposed of and so the officers remained under caution and so would be unlikely to give evidence. This was entirely wrong. Incompetence had led to the delay in finalising the notices and further incompetence failed to implement the decision made by Ms Lawson in June 2004, just before she went off sick due to acute appendicitis, that the notices should be finalised. She accepted that she was wrong not to have included PC Ashton's notice, but that error could not have had any adverse effect. That erroneous information given to Judge Gullick led him to comment that the claimants had been deprived by the prosecuting authority of the opportunity to call potential witnesses.
- Ms Lawson's absence led to some failures of liaison between the CPS and the police as to how the defence allegations which founded the abuse of process argument should be dealt with. Prosecuting counsel indicated that he did not propose to call any evidence, particularly in relation to the absence of a note of what had happened on 2 May 2003. He seems to have failed to heed the warning conveyed by the judge in these words: -
"It's not very often that the Crown are accused of serious bad faith. It ends up with leading counsel using the word 'disgraceful' which perhaps is a little over the top but perhaps he would say not, and I am not to hear any evidence from anybody to rebut the assertions which the defence are making?" (Transcript for 17.8.2004 p.26B).
A little later, there was this interchange: -
"Judge. Could it be … that the prosecution here have a motive that they wish to protect their own witness and seek to impugn the credibility of two police constables?….
Counsel. It is what the defence are suggesting but your honour that in my submission is a matter for the jury to decide …
Judge. An on what evidence are they to decide it?
Counsel. When they see Mr Stoner being cross-examined and hear the points which are put to him and …
Judge. And they are not going to hear from any senior officer in the D&C who had any dealings, for instance, as I say, on 2nd May?
Counsel. Well, no … because that was part of our investigation …
Judge. When is Mr Myerson to ask:' Now `Ms Lawson, why did you go to the CPS on the 2nd of May to view this video?'
Counsel. Well … if you are concerned about that there is of course a process whereby the court can call a witness.
Judge. I am not calling any witness. The Crown present this case, they put it. I am just wondering who Mr Myerson should ask.
Counsel. … The officer in charge of the case … Inspector Spencer".
As the judge pointed out, she had not been present at the meeting of 2nd May. It did not help that the CPS file had gone missing, but unfortunately the judge was not informed that all that it contained was available at court.
- In his skeleton, Mr Myerson submitted that prosecution counsel's observations and the indication that he was not going to call evidence indicated that he was acting on instructions. This was said to support the implication that there was bad faith. In a memorandum sent to the CPS after the prosecution was stayed, counsel defended his decision not to call any evidence saying that 'the prosecution are not obliged to against its will to call witnesses, and certainly not merely to have them traduced by the defence. That is what would have happened here had we called e.g. Theresa Lawson or Rebecca Macaulay … It is quite clear from the terms in which … the judgment is set out that the judge would not in any event have been satisfied of the prosecution bona fides". At my suggestion, he was asked specifically about the following interchange between him and the judge upon which Mr Myerson particularly relied: -
"Judge. … one would have thought that bad faith all round would mean that somebody might go in the witness box and try and explain it to me.
Counsel. Well … if there is a fault there then it is at my door.
Judge. That's a decision you have taken?
Counsel. That[s] a stance I take".
Mr Myerson had submitted that that last answer, not being a direct answer to the question, indicated counsel was acting on instructions. I am bound to say I regarded that submission as singularly far-fetched, but it seemed sensible to get counsel's response. Counsel's response in a somewhat unhappy memorandum was that he had had considerable discussions with the CPS case officer, Lauren Strang, in the course of which it was made very clear to him that she would be "intolerant of any investigation of the investigation' or of the calling as a witness to be cross-examined of e.g. the CPS lawyer with conduct of the original matter of R v Stoner".
- In her evidence Ms Strang told me that she had not given that indication and certainly had not given instructions that no evidence should be called. No doubt the general view is (and I am sure it was expressed) that CPS lawyers do not expect to give evidence about investigations or their conduct in connection with a prosecution. I am equally sure that in the circumstances of this case (and I appreciate that I am acting with the advantage of hindsight) the decision not to call any evidence was wrong and that at the very least the matter should have been discussed with the D&C officers, Ms Lawson and the CPS officers concerned. But I am certain that the inference that Mr Myerson seeks to draw that there was a reluctance to give evidence because of a recognition that there had been bad faith is one which cannot properly be drawn. Not only have those concerned willingly given evidence before me but, as Mr Myerson was forced to accept, it would be remarkable if I were to reject their evidence.
- I have no doubt whatever that Judge Gullick's decision was wrong in the sense that, had he heard the explanations which I have heard and not been misled about the position of the officers involved in the alleged incident in October 2001, he would not have decided that there was an abuse of process. But I make it clear that that is not to criticise his decision. There were matters which needed to be explained and were not and, on what he heard, it is not surprising that he decided as he did.
- There is no doubt that there is a prima facie case to justify disciplinary charges in the terms that have been preferred, namely that the claimants behaved dishonestly in that there was an unlawful arrest of Stoner and that they thereafter 'fabricated evidence to justify the arrest and the section 5 Public Order Act 1986 charge' that was brought against him. Mr Myerson has unsurprisingly not felt able to argue the contrary. There are considerable points to be made in defence, although there can be little doubt that there was at best a failure to take sufficient care in putting the evidence together. The claimants have very competent counsel to represent them and for obvious reasons it would be undesirable for me to comment on the evidence or the strength or otherwise of the case against them.
- Having heard the evidence, Mr Myerson, recognising that he would be unlikely to persuade me that there had been bad faith, shifted his ground. He submitted that if to proceed would be unfair or there had been any misuse of the system at any stage, I should intervene. He submitted that, even if there were no obvious prejudice to a fair hearing, misuse should mean that an abuse was established. He relied on which he submitted was a decision by DCC Brear based on lack of full information, in particular that Stoner had threatened not to give evidence in the cross border hearings unless something was done about the harassment of which he complained on the 21 March prosecution. Further, he suggested that Regulation 9 notices should have been served once the complaint was made and that certainly further information which might be damaging to the claimants should not have been obtained without some warning having been given. I am afraid I must reject those submissions. I have already referred to the evidence about what was done and I entirely reject any suggestion that there was a misuse of the system or any unfairness in getting the further information. As I have said, I have no doubt that DCC Brear was correct to accept that there was a prima facie case against each claimant. Indeed, any other decision would have been surprising.
- The suspension issue I can deal with very briefly. Mr Myerson accepted, as he manifestly had to, that suspension was appropriate for charges such as those faced by these claimants. I do not accept that there was any error in the imposing of the suspensions or their continuation. And, so far as this claim is concerned, I have to look at the present position and, as Mr Myerson accepted, it is impossible to say that suspension is unlawful.
- I should, however, say that the paperwork produced by the West Yorkshire Police in respect of the suspensions was wholly inadequate. The documents which purported to record the approval of renewal of suspensions were inaccurate in that they indicated that the charges followed the 2001 incident and did not show, as they should have done, that renewal was approved by the Deputy Chief Constable. This led Mr Myerson to make a number of submissions based on the supposed failure of Mr Brear to approve the renewals. He accepted, having heard Mr Brear, that he could not maintain those submissions. Nor, as I have already indicated, is there anything wrong in the original suspension.
- Chief Superintendent Bradley accepted that the documentation was unacceptable and has been responsible for changing the system. Since November 2004 the relevant notice has contained in short form the reasons why the suspension has been imposed or renewed. These reasons are not routinely shown to the constable who has been suspended, but if I correctly understand the system, they would be available on request. That seems to me to be desirable. It is, I think, arguable that suspension, which has a severe effect on a constable's private life since it may prevent him from any association with his colleagues even when they are off duty, could be regarded as an interference within Article 8 of the European Convention on Human Rights. It is not necessary to decide whether it does and whether accordingly reasons must be given. But, as I have said, it is certainly desirable and may even be necessary to give reasons. And those reasons should be provided to the constable on request. Mr Watson pointed out that the Home Office Guidance required reasons to be given only where retirement was not being permitted because it was regarded as a means of avoiding disciplinary action: see Paragraph 3.18. I am satisfied that that limitation should not apply.
- For the reasons I have given, both these claims fail and must be dismissed.
